A California Court of Appeal has come down with a landmark decision in Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, recognizing associational disability discrimination under the California Fair Employment and Housing Act (“FEHA”.) As the Court defined it, associational discrimination occurs in three types of situations or categories: expense, disability by association, or distraction. Expense happens when the employee associates (such as through marriage or family) with someone that ends up costing the employer money; disability by association happens when the employer believes the association indicates the employee’s own disability; and distraction happens when the employee’s association with a disabled person detracts from his or her job performance.

First the facts that lead to the court’s decision – when Auto-Chlor hired Scott Rope in September 2010, he informed the company that he was scheduled to donate a kidney to his sister in about five months, in February 2011. Over the next few months, Mr. Rope continued to notify the HR department of his upcoming donation and that he would need to take leave afterward. In November 2010, Mr. Rope learned that California’s Donation Protection Act (DPA) would go into effect on January 1, 2011 and would entitle him to 30 days of paid leave for his organ donation. He requested that paid time off after his scheduled donation because his doctor expected that he would need the time to recuperate. After multiple inquiries to the company, he did not hear back from the company about his request. Two days before the DPA went into effect, Auto-Chlor fired Mr. Rope for poor performance. He had received satisfactory reviews until that time.

The court considered the facts in this case to fall under a broad reading of the expense scenario, concluding that Auto-Chlor dismissed Mr. Rope to avoid expenses tied to his association with his disabled sister. But the court was quick to limit its decision to the “unusual” facts here and cautioned potential plaintiffs not to start associating with a disabled person on the theory that doing so will prevent their termination.

This is a good case in point of the long process litigation often tends to be. Mr. Rope filed a lawsuit against Auto-Chlor in August 2011. Soon after, Auto-Chlor began its string of efforts to get the case dismissed by demurring. (A demurrer challenges a legal complaint by arguing that it does not contain enough facts to bring a lawsuit. It’s kind of like a defendant saying “so what?” to a plaintiff.) So after Auto-Chlor’s first demurrer, Rope amended his complaint, listing seven causes of action. Auto-Chlor demurred again, second time now, and the court sustained part of the demurrer – saying that there were not sufficient facts to satisfy requirements to bring a lawsuit. When Rope filed his second amended complaint, Auto-Chlor demurred yet again for the third time. And the court sustained the entire demurrer!

Mr. Rope then took his case to the Court of Appeal. The Court of Appeal rendered three significant conclusions that were not helpful to Mr. Rope or employees’ rights in general. First, since Auto-Chlor dismissed Mr. Rope just before the DPA took effect, and the law was not retroactive, the court ruled that Mr. Rope was not protected under it. Second, the court interpreted that Labor Code section 1102.5 does not trigger anticipatory or preemptive retaliation for internal whistleblower complaints. (By the way, this may not be the case anymore after the California legislature’s changes to whistleblower statutes became effective as of January 2014.) Third, and probably most troubling, the court concluded that Mr. Rope’s leave requests were not “protected activity.” The court essentially ruled that Auto-Chlor gets a free pass to terminate Mr. Rope for his requests for reasonable accommodation. In fact, the court broadly determined that there is no support for arguing repeated requests for accommodation are protected activity!

Finally, the appellate court reiterated the principle that a trial court should not sustain a demurrer when the plaintiff can state a cause of action under any possible legal theory. So all in all this is a mixed decision for employees’ rights with the landmark recognition for associational discrimination but not such a great decision when it comes to requests for reasonable accommodation and anticipatory retaliation.